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Author: Dea Dragashi

Three Stripes: You’re Out

Posted on by Dea Dragashi

The Court of Appeal has upheld the invalidation of adidas’ UK “three stripe” position trade marks.

The Court of Appeal has rejected adidas’ attempt to overturn a 2024 High Court ruling that invalidated a number of its iconic “three stripe” position trade marks. Thom Browne, who had been sued by adidas for trade mark infringement in relation to the use of four stripes, had counterclaimed to invalidate adidas’ marks.

The core problem for adidas was that the trade marks were not precise enough: if they were retained, adidas would be granted too broad a monopoly on the placement of three stripes on garments.

Adidas’ marks covered three stripes applied to various garments. Images and written descriptions sought to identify the positions and proportions of the marks. So called “position trade marks” must satisfy the criteria for valid trade marks, including being clear and precise and consisting of a single sign.

The High Court had previously decided that, as a result, adidas’ marks for the three stripes along the arm of a jacket, down the leg of a tracksuit, and along the side of a vest, were invalid. It is worth noting that only certain of adidas’ position marks were found invalid. Its registrations for the three stripes as they appear on trainers, for example, were held to be and remain valid.

The Court of Appeal agreed with the High Court’s earlier decision, concluding that adidas’ trade marks did not identify a single and clearly defined sign and were uncertain.

To be valid, a trade mark must unmistakably define its own monopoly. This clarity, the Court said, is crucial so that competitors and consumers can understand where the boundaries of a trade mark’s protection lie. As adidas’ position marks left room for variation in the possible placement and proportions of the three stripes on the garments, they did not meet this requirement.

This decision highlights the importance of precision when applying to register trade marks, and, particularly, position marks which (as the name suggests) get their distinctive character in part from clearly defined positioning. The High Court had been correct to decide that a trade mark cannot grant a broad monopoly over ambiguous variations of the placement of a design, as that uncertainty gives the trade mark owner an unfair advantage of its competition.

Brand owners, in the fashion industry and otherwise, who rely on position marks should carefully review their portfolios to ensure that each registration clearly reflects the exact way in which the mark is used and is precise. When filing for new trade marks, brands should ensure that the representations and descriptions of the marks are highly specific about where and how the mark appears on a product. General or decorative motifs, such as three stripes, cannot be broadly protected unless their representation in the trade mark application is precise and unambiguous.

Opening the door to new opportunities for Key4Life

Posted on by Dea Dragashi

Over the past two years, we have proudly partnered with Key4Life, a crime prevention charity which rehabilitates young men in prison or at risk of going to prison.

As our nominated ‘Charity Partner of the Year’, we have supported Key4Life through giving our people the opportunity to offer their time to foster meaningful change, particularly through initiatives such as volunteering, events and work placements. These initiatives have been coordinated by our dedicated Key4Life committee which helped to facilitate these opportunities and connect the charity with people from across the firm.

Some of the standout initiatives from the two-year programme include a three-day work placement for the young men, in-prison volunteering at HMP Thameside and HMP Fosse Way, and several events hosted in our office. Among these events was a Dragons’ Den, where the young men pitched their business ideas to a panel of ‘dragons’ after a session on key business and legal advice from experts. Additionally, we hosted our Unlocking Futures panel event, centred on the question ‘How can we create a culture of employment opportunity for prison leavers?’ which sparked powerful discussions and practical ideas for addressing barriers to employment for prison-leavers.

For the participants, the support they’ve received has been instrumental in helping them build the experience and confidence needed to take the next steps in their professional or academic journeys. Indeed, the benefits are reciprocal as those who have volunteered have found the experience to be equally rewarding and have seen their own skills honed as a result. Several of the events we hosted were attended by various clients of ours; this not only enabled the participants to gain insights from those who work in a range of industries outside of law, but it also meant that we were able to share the enriching experience of being a volunteer with the participants who attended on behalf of our clients.

Volunteers from one of our long-standing clients, De Beers, were invited by us to attend several of our hosted events and subsequently participated in many of Key4Life’s initiatives. This has led the relationship to grow, with De Beers and Anglo American colleagues supporting Key4Life through its Ambassador for Good 2025 programme, which empowers employees to support causes they care about, and make meaningful change to communities.

Kirsten Mansfield, legal counsel at De Beers and an active participant in Key4Life initiatives, said:

“After my first Key4Life event through Harbottle & Lewis, I was keen to find new ways to support the charity and involve more colleagues. The Ambassador for Good 2025 programme provided a great platform for wider participation within the company, and left a lasting impression on our team. Key4Life’s initiatives are brilliant, and we look forward to continuing our support and involvement.”

Sacha Wilson, partner at Harbottle & Lewis and client relationship partner with De Beers, said:

“We are pleased to see that De Beers is continuing to support Key4Life through its Ambassador for Good programme alongside Anglo American – it is extremely rewarding to know that the charity will continue to benefit from the support of other responsible organisations following completion of our two-year programme. We look forward to seeing the partnership develop and make a lasting difference.”

About Key4Life

Key4Life is an innovative crime prevention charity which rehabilitates young men in prison or at risk of going to prison, providing real solutions to help reduce youth offending.

The charity’s rehabilitation programmes help the young men to build resilience and release negative behaviours through a powerful blend of music, football, equine therapy, NLP (neuro-linguistic programming) and emotional release sessions.

To learn more about the work that Key4Life does, head to its website here: Key4Life – Reducing youth re-offending

Model Behaviour: Stability AI’s model is not an “infringing copy”, but legality of AI training remains unresolved

Posted on by Dea Dragashi

In the recent judgment in Getty Images v Stability AI [2025] EWHC 2863 (Ch), the High Court considered whether the generative AI model Stable Diffusion infringed copyright in works owned by/licensed to Getty Images, and further whether the model outputs infringed Getty Images’ trade marks. Getty argued that millions of its images had been used without permission to train the Stable Diffusion model, and that the model itself was therefore an infringing copy of the works.

Crucially, the court was not considering whether copyright was infringed during the training process of Stable Diffusion, as those claims were not pursued to trial by Getty due to a lack of evidence of training having been taken place in the UK. Instead, the High Court decided on the much narrower issue of whether the trained Stable Diffusion model is itself an “infringing copy” of the copyright works trained on. If the model was an infringing copy, under secondary copyright infringement law, its import into the UK would have infringed Getty’s copyright, even though the model had not been trained in the UK.

The High Court’s decision came down to the way in which Stable Diffusion was trained, and the relationship between the model and its training data. Stable Diffusion is a diffusion model, meaning its model weights are numerical parameters learned from training, not stored or compressed copies of its training data. The model does not contain any of Getty’s copyright images in any form whatsoever – and never has done – even though it may have been exposed to them during training. Getty’s secondary copyright claim failed as a result.

Although Getty lost its secondary copyright infringement claim, this was a highly fact-specific decision which related to this model of Stable Diffusion only. The High Court stressed this in its decision. Although it may be true that an “AI model which does not store or reproduce any copyright works (and has never done so) is not an “infringing copy””, this leaves the door open for an AI model that does store or reproduce copyright works (or has done so at some point) being found to be an infringing copy of its training data. Other model architectures that retain or reproduce their training data verbatim – which is more common for text models than image models like Stable Diffusion – may still be deemed infringing copies. In addition, there is scope for argument on whether a more liberal interpretation of what is an infringing copy should be adopted: in circumstances where the model has extracted the value and intellectual creation of copyright works, and in a manner that was not envisaged when the legislation was passed, why is this not reproduction of the underlying intellectual creation?

Further, as Getty dropped its training claims at trial, the UK courts are yet to decide on whether the training of AI models using copyright works in the UK infringes copyright. That question will need to be decided in a future claim involving an AI model that was trained (or at least partially trained) in the UK. 

On the trade mark infringement claim, the court made a limited finding of trade mark infringement where early model versions of Stable Diffusion produced outputs with Getty-style watermarks.

If you’d like to speak to a member of the team about any of the issues raised by the judgment, please reach out to one of our AI experts.

Harbottle & Lewis advises Lumina Media on its investment in Arcade Media

Posted on by Dea Dragashi

We have advised Lumina Media on its strategic investment in Arcade Media, a London-based talent management agency representing some of the UK’s top content creators.

Thomas Benski’s Lumina Media, a London-based IP-led media and venture group, provides creative, operational and strategic support to its portfolio of companies and talent, helping them build brands and produce content. The investment aligns with Lumina’s strategy of supporting next-generation companies at the intersection of digital media and entertainment.

Founded in 2021, Arcade Media has established itself as a premier talent management agency, helping content creators grow their brands, secure partnerships and develop original content and experiences that bridge the gap between digital talent and mainstream entertainment. The agency is best known as the exclusive management partner for The Sidemen, one of Europe’s largest YouTube collectives.

The transaction demonstrates the continued growth and maturation of the digital content creator economy, as traditional media and venture capital increasingly recognise the value and commercial potential of digital talent and their audiences.

Tim O’Shea, Lumina Media’s Group Director of Commercial and Business Affairs, noted:

“Harbottle & Lewis’s understanding of the media landscape and the nuances of creative businesses make them invaluable advisors. Their support on this investment was seamless, strategic, and effectively aligned with how we operate.”

Tim Parker, partner at Harbottle & Lewis, commented:

“We are delighted to have advised Lumina Media on this exciting investment. Arcade Media represents the future of talent management in the digital age, and we look forward to seeing how this partnership will help accelerate their growth and expand their influence in the creator economy.”

This investment adds to our extensive track record of advising on media and technology transactions, reinforcing the firm’s position as the go-to legal adviser for innovative companies in the media, entertainment and technology sectors.

Our transaction team was led by partner Tim Parker and managing associate Rosie Marston, with support from associate Jake Jacobson.

Three recognised as Rising Stars by IP Stars

Posted on by Dea Dragashi

Three of our managing associates have been recognised as Rising Stars in the IP Stars 2025 rankings.

Zoey Forbes, Clare McGarry, and Sam Purkiss have been named as Rising Stars, an accolade which recognises the best up-and-coming intellectual property practitioners in private practice who have contributed to the success of their firms and clients.

IP Stars, part of the Managing IP media group, is a specialist guide covering legal practitioners who deal with contentious and non-contentious intellectual property issues. Its rankings assess and rank law firms and practitioners globally in a range of IP practice areas.

Click here to view the full list of practitioners on the IP Stars website.

Finalist for Family Law Firm of the Year

Posted on by Dea Dragashi

We have been named as a finalist for Family Law Firm of the Year at the LexisNexis Family Law Awards 2025.

The awards seek to recognise the work of family lawyers and celebrate their successes and achievements. The Family Law Firm of the Year category recognises firms that have delivered outstanding quality of legal service for their clients and displayed high levels of teamwork with external lawyers and/or other third parties.

The winners will be announced at the awards ceremony on Wednesday 19 November at the Park Plaza Westminster Bridge, London.  

To read more about the awards, including the full list of nominees, click here.

Five partners recognised as leading family lawyers by Spear’s

Posted on by Dea Dragashi

Five of our partners have been recommended by Spear’s as leading family lawyers for HNW and UHNW individuals in the 2025 Spear’s family law index which was published today.

Senior partner Catherine Bedford has once again been recognised as Top Flight, Nicholas Westley and Mark Irving are Top Recommended whilst Lidia Cantele and Alex Ward have been given Recommended rankings. The index recognises the leading family lawyers advising on high value divorces, cohabitation disputes, child custody, nuptial agreements and mediation and is compiled using extensive data from advisers themselves, as well as submission forms, nominations, peer reviews, data from third-party sources, references, recommendations and hundreds of interviews.

You can see the index in full here.

Harbottle & Lewis advises PlaySafe ID on pre-seed fundraising

Posted on by Dea Dragashi

We have advised PlaySafe ID, a digital identity platform designed to improve safety and accountability in online gaming, on its $1.12 million pre-seed fundraising led by Early Game Ventures with participation from Hartmann Capital and Overwolf.

Founded by Andrew Wailes, PlaySafe ID is currently in talks with several major gaming platforms and is aiming to announce its first partnerships later this year.

Our team was led by partner Ed Lane with support from associate Matthew Shannon.

On working with Harbottle & Lewis, founder Andrew Wailes commented: “I cannot express how happy I am with the work that Harbottle & Lewis undertook for us. The expertise and guidance in particular from Ed Lane and Matthew Shannon was critical in securing our funding in the right way, to protect both us and our investors. The team have been prompt, and provided assistance whenever we needed it. I would gladly recommend them.”

Ed Lane added: “We are delighted to have supported Andrew and his team on this initial fundraise, and we look forward to seeing PlaySafe ID go from strength to strength as it scales.”

The Data (Use and Access) Act receives Royal Assent, bringing change to the UK’s data protection regime

Posted on by Dea Dragashi

On 19 June 2025, the UK’s Data (Use and Access) Act 2025 (the “DUA Act”) received Royal Assent.

This new legislation updates the UK’s current data protection regime which comprises of the UK General Data Protection Regulation (the “UK GDPR”), the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations (the “PECR”). The DUA Act will come into force in phases, expected to commence at two, six and twelve months after Royal Assent, giving you time to implement the necessary data protection related changes to your organisation.

What does the DUA Act change and how does it impact organisations?

New ‘recognised legitimate interests’ lawful basis: when you use personal data for legitimate interests, you need to balance the impact on the people whose personal data you use, against the benefits arising from that use – this is commonly done by way of a legitimate interest assessment (“LIA”). However, the DUA Act now includes a list of recognised legitimate interests which means for such interests you don’t need to complete an LIA. This list will be in Schedule 4 to the DUA Act which inserts a new annex to the UK GDPR and includes interests such as:

  1. Sharing personal data if a public authority confirms it’s needed for their public task
  2. Using personal data to safeguard national security, public security, or defence
  3. Using personal data to respond to emergencies under the Civil Contingencies Act 2004
  4. Using personal data to detect, investigate, prevent crime, or prosecute offenders
  5. Using personal data to protect vulnerable individuals from physical, mental and emotional harm or neglect and support their well-being

A new ‘assumption of compatibility’: under the purpose limitation principle, if you re-use personal data you have already collected for a different purpose, you must ensure the new purpose is compatible with the purpose you initially collected it for. However, the DUA Act now includes a list of reuses of personal data that are assumed compatible with the original purpose. This list will be in Schedule 5 to the DUA Act which inserts a new annex to the UK GDPR. You can reuse previously consented personal data for a new purpose if necessary for one of the reasons below, but only if it’s not reasonable to obtain fresh consent, such as using personal data to:

  1. assess or collect taxes or duties; or
  2. comply with legal requirements.

‘Soft opt in’ for charities: if you’re a charity, it allows you to send electronic mail and SMS marketing to people whose personal data you collect when they support, or offer support or express an interest in, your work – providing you offered them a chance to opt out when you collected their personal data and you provide them with a chance to opt out in every electronic communication thereafter.

New cookie exemptions: the DUA Act allows you to set some types of cookies without having to get consent. Currently, you must get consent for all non-strictly necessary cookies. The list of exemptions will be in Schedule 12 to the DUA Act which inserts a new schedule to PECR, so you won’t need consent where the cookie or similar technology is for:

  1. the sole purpose of carrying out transmission of a communication over an electronic communications network;
  2. the non-exhaustive examples of strictly necessary purposes listed in the schedule, including security, fraud prevention, fault detection and authentication;
  3. the sole purpose of enabling a service provider to collect information for statistical purposes about how their online service is used;
  4. the sole purpose of enabling a service to adapt its appearance or functions in accordance with someone’s preferences; and
  5. the sole purpose of working out the subscriber or user’s geographical location when they request emergency assistance.

Reasonable and proportional search under data subject access requests (DSARs): it makes it clear that you only have to make reasonable and proportionate searches when someone asks for access to their personal data.

Complaints: individuals have certain rights such as the right to be informed, access, object, erase, restrict and rectify their personal data. The DUA Act introduces a right for people to complain to organisations and competent authorities if they think that they’ve used their personal information in a way that doesn’t comply with the law. This is similar to the complaints procedure under Freedom of Information Requests under FOIR. It places an obligation on organisations and competent authorities to:

  1. help people to make complaints, requiring them to take steps such as providing an electronic complaints form; and
  2. acknowledge complaints within 30 days and advise the complainant of the outcome without undue delay.

They must also take appropriate steps in the meantime, such as making enquiries into the subject matter of the complaint and keeping the complainant informed about progress.

Using personal data for scientific research: the DUA Act makes it clearer when you can use personal data for the purposes of scientific research, including commercial scientific research. It makes the following clarifications:

  1. People can give “broad consent” to an “area of scientific research” rather than “specific” consent – as long as: the exact purpose was unknown at the time of consent, the consent aligns with recognised ethical standards for the research area, and individuals are given the option to consent to only part of the processing.
  2. You can re-use people’s personal data for scientific research without giving them a privacy notice, if that would involve a disproportionate effort, so long as you protect their rights in other ways and still explain what you’re doing by publishing the notice on your website.  

Automated decision making – personal data: previously, decisions based solely on automated processing of personal data were restricted unless they were necessary for a contract between you and the individual, permitted by UK law or done with consent from the individual. Now, the DUA Act removes this restriction and allows an organisation to make solely automated decisions in a wider range of situations as long as it has appropriate safeguards in place – such safeguards include:

  1. providing the individual with information about the decision;
  2. allowing that person to make representations about the decision;
  3. enabling that person to obtain human intervention about the decision; and
  4. enabling that person to contest the decision.

There is no change to the restrictions around decision based solely on automated processing of special categories of personal data – they are still restricted unless you have consent from the individual or it was necessary for substantial public interest under the Data Protection Act 2018.

International transfers: various changes have been made to help make transferring personal data internationally easier. For example:

  1. The protection standard for transferring data now requires that it “is not materially lower” than UK GDPR and Data Protection Act 2018 standards (previously, it required that “the protection of natural persons guaranteed by the UK GDPR is not undermined”). This is referred to as the data protection test.
  2. Schedule 7 of the DUA Act form formalises the requirement for an organisation to do a transfer risk assessment for transfers subject to appropriate safeguards (such as standard contractual clauses). It does this by saying that an organisation must meet the data protection test “reasonably and proportionately”.

There are some operational and terminology changes such as: adequacy decisions are now called “transfers approved by regulations”, with the Secretary of State required to consider specific factors for the data protection test, implement ongoing monitoring instead of a four-year review period, gain new powers to recognise and introduce other transfer mechanisms, and make minor adjustments and restructuring to existing transfer requirements.

PECR breaches and enforcement: there are changes to the rules under PECR, including:

  1. the time period within which communications providers need to inform the ICO of a personal data breach from without undue delay or within 24 hours, to ”without undue delay and where feasible, not later than 72 hours after having become aware of it”, aligning it with the UK GDPR requirement to report a personal data breach;
  2. removing the requirement to establish that a contravention under PECR has caused substantial damage and distress; and
  3. allowing the ICO to impose monetary penalties up to a maximum of £17.5m for certain failures to comply, aligning it with the UK GDPR monetary penalty cap.

Changes to the ICO: there are multiple changes around the structure and powers of the UK’s data protection regulator, the Information Commissioner’s Office, such as:

  1. The ICO can compel individuals working for or on behalf of organisations to attend interviews and answer questions if there is suspected non-compliance or an offence under data protection law.
  2. An extension to the time for the ICO to issue penalty notices after a notice of intent from six months to six months or as soon as reasonably practicable.

Are there any new compliance requirements you have to meet?

Yes:

  1. If you provide an online service that is likely to be used by children, the DUA Act explicitly requires you to take their needs into account when you decide how to use their personal information. You should already satisfy this requirement if you conform to the ICO’s Age Appropriate Design Code.
  2. If you don’t already do so, the DUA Act requires you to take steps to help people who want to make complaints about how you use their personal data, such as providing an electronic complaints form. You must to acknowledge complaints within 30 days and respond to them ‘without undue delay’.   

Next steps

  1. Familiarise yourself with the changes that the DUA Act makes to data protection laws.
  2. Map out how the DUA Act can make your organisations compliance with data protection laws easier – such as “should do” and “must do” lists.
  3. Introduce a complaints escalation mechanism to allow individuals to complain to your organisation if they feel that the organisation has not complied with data protection laws.
  4. Implement a data protection compliance programme accordingly.

If you would like more information, please feel free to reach out to one of our dedicated data protection lawyers, or if you would like keep up to date on the latest in data protection, please subscribe to our quarterly newsletter, The Data Download.

Harbottle & Lewis advises on the sale of performance-io to private equity firm Apiary Capital

Posted on by Dea Dragashi

We have advised the sellers of performance-io, a leading life sciences performance marketing, SEO and GEO agency, on its sale to private equity firm, Apiary Capital.

Founded to deliver cutting-edge performance marketing solutions, performance-io has established itself as a key player in the industry, working with clients to enhance their marketing strategies through data-driven insights and expertise. Headquartered in London, the business now operates globally with teams in the UK, US, India, Japan and South Africa. 

Founder and CEO Matt Lowe and his senior management team will remain with the business, focusing on driving performance-io’s further growth and development.

Our team was led by partner Ed Lane, with support from senior associate Alex Gays, and associates Elizabeth Compton and David Jones. Co-managing partner Tony Littner provided strategic support throughout, with partner David Scott advising on corporate tax matters. Partner Yvonne Gallagher and associate Harry Wade also advised on employment matters.

On working with Harbottle & Lewis, Matt Lowe commented: “I’d not worked with lawyers on a PE backed deal before, and frankly the mood music about the experience wasn’t great. However, the experience with Harbottle and Lewis was. From the first meeting with Tony and Ed, through to working with the broader team through some complex curve balls, we had a superb experience; working in a collaborative manner, learning loads and always with a calming, assured temperament. I can’t recommend H&L enough.”

Ed Lane added: “We are delighted to have supported Matt and his team on this milestone, and we look forward to seeing performance-io’s continued success in its partnership with Apiary Capital.”